N.J. Constitutional Convention: Vol. 4, Page 166

STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947COMMITTEE ON THE JUDICIARYWednesday, July 2, 1947 (Morning session)

But that, in brief, is the substance of my feeling about the general structure. I say the architecture of it and its implementation is a matter for a Committee like this, which has given a great deal more time to it than I have been able to do. I don't think there is anything more I can or should say. I don't want to appear pontifical in the presence of such intellects as Dean Sommer and Chief Justice Brogan. That is my viewpoint.

VICE-CHAIRMAN: Do you care to express an opinion on the questions of tenure, compulsory retirement, pension or appointment?

JUDGE BRENNAN: Yes, of course. If a man has done a good job, there is no plausible reason why he should not be continued in office. I think the terms might well be longer, or maybe the experimental term could be shorter, and the secondary term longer.

MRS. GENE W. MILLER: Do you think it necessary to have an experimental term at all?

JUDGE BRENNAN: I don't know. I would rather seek the viewpoint of the Governors, who have been the appointing power, on that.

So far as retirement is concerned, I think it ought to be made compulsory, and I think it ought to be an age younger than 70.

VICE-CHAIRMAN: Younger than 70?

JUDGE BRENNAN: Yes. I saw a striking illustration of that, depending on where you sit. The then President of the United States was accused of packing the court in an unsuccessful attempt to make certain changes. I think it was probably a skirmish in any event, but the best brief on the subject, which nobody saw and which could have been filed by the proponents of that plan, was in the financial section of a paper as conservative as the New York Times, to the effect that the then president of the Consolidated Gas or the New York Edison Company was being retired because he had reached the age of 65. I think it was George B. Cortelyou, who was one of the secretaries under Theodore Roosevelt, singularly enough. And attached to, and part of the general arrangement, it was indicated that his successor could only spend 14 months in the position, because he would then have reached the age of 65. It seems to me that the strain put on that man is no greater than that put on judges who work as hard as Supreme Court Justices do.

I don't know whether "compulsory" is the word, but certainly "optional." Of course that is rather an extreme viewpoint.

MR. GEORGE F. SMITH: There is a distinction in business, however, Judge. We generally believe in business that the responsibilities of operation, as distinguished from exercising policy judgment, spell out two different retirement ages. We say, for example, that the problems of supervising wide, separate operations, getting